Unfitness to Plead Consultation Responses - Law Commission ...

UNFITNESS TO PLEAD
Response by the Law Reform Committee of the Bar Council
and the Criminal Bar Association of England and Wales
70. It seems to us that the trial judge – with the approval of the Court of Appeal –
applied the Pritchard test in a way that regarded as important the defendant’s defendant
ability to participate effectively in his/her trial.
71. At a time when commentators are considering (and rightly so) whether the
Pritchard criteria is too oo narrow, it is arguably ironic that in 2001 a study suggested
that the criteria could actually be pruned [emphasis added]: 96
(and rightly so) whether the
oo narrow, it is arguably ironic that in 2001 a study suggested
According to this study, the conclusion by psychiatrists as to whether
someone is fit to plead is most strongly associated with ju judgements dgements on two
of the legal criteria - ability to follow the proceedings of the trial and
ability to instruct a solicitor - which identified 91.25% and 90% of unfit
cases respectively. The logistic regression produces a predictive model
incorporating the three issues concerned with trial (following trial,
instructing solicitor and understanding details of evidence). Addition of
the factors relating to plea and charge did not increase the power of the
model. This suggests that these factors could be jettiso jettisoned ned without
affecting the performance of the remaining criteria in predicting
unfitness.
72. There is a further consideration
determination (personal autonomy) is not to be lightly disregarded.
that a bad/irrational decision made by the defendant at trial may be difficult to put
right later. 97 here is a further consideration, namely, that the principle of a defendant’s selfdetermination
(personal autonomy) is not to be lightly disregarded. We recognise
decision made by the defendant at trial may be difficult to put
Indeed some appeals have been historic.
73. As the Commission points out, there is no standardised procedure for the screening
of defendants in England and Wal Wales
able to recognise (and do)
considered whether provision might be made
representatives to be protected from compl
initiate (without the consent of their lay client) proceedings for a determination of
the defendant’s capacity for decision
this would be tenable or practical. A
practical considerations too.
the Court of his/her concern, it would remain the defendant’s decision whether to
submit to medical/psychiatric assessment or not. A legal practitioner will wis
98 standardised procedure for the screening
but we suggest that legal practitioners are
able to recognise (and do) mental abnormality and learning difficulties. We have
considered whether provision might be made for a defendant’s legal
representatives to be protected from complaint if, on reasonable nable grounds, they
initiate (without the consent of their lay client) proceedings for a determination of
the defendant’s capacity for decision-making. However, we do not believe that
this would be tenable or practical. Apart from ethical considerations, there are
practical considerations too. Even ven if the defendant’s legal representative alerted
the Court of his/her concern, it would remain the defendant’s decision whether to
submit to medical/psychiatric assessment or not. A legal practitioner will wish wis to
unreliable. The whole purpose of the trial rial process is to determine what parts of the evidence are reliable and what
parts are not. That is what the jury are there for. Nor is it necessary that the defendant should be able to remember
all or any of the matters which give rise to the charges aagainst
gainst him. He is entitled to say that he has no recollection
of those events, or indeed of anything that happened during the relevant period.”
96
D.V. James, G.Duffield, R.Blizard, and L.W. Hamilton: “ “Fitness Fitness to plead. A prospective study of the inter- inter
relationships lationships between expert opinion, legal criteria and specific symptomatology
symptomatology”; ”; Psychological Medicine, 2001,
31, 139-150. 150. 2001 Cambridge University Press.
97
Consider Neaven [2006] EWCA Crim 955.
98
CP, para. 2.62.
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